NLRB Lacks Authority for Its D.R. Horton Decision
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Description
The two-member Board in D.R. Horton ruled that a class action waiver in a predispute arbitration agreement required as a condition of employment violates Section 8(a)(l) of the National Labor Relations Act ("NLRA"), which makes it an unfair labor practice "to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in" Section 7. In turn, Section 7 protects employees' rights "to engage in . . . concerted activities for the purpose of collective bargaining or other mutual aid or protection.'' The theory of the agency's ruling is that because employees are protected from employer retaliation for engaging in group assertion of workplace claims by filing a group lawsuit, the right to file and maintain the lawsuit on a group basis become ''protected activities" that may not be "restrict"[ed], NLRB v. D.R. Horton, Inc. even by otherwise lawful individual employment agreements. In essence, a minor aspect of the NLRA—the protection of the act of asserting a group claim over non-NLRA rights—becomes a basis for the NLRB's reaching out from its proper role of enforcing collective law into a new world of individual employment law. With this decision, the Board overstepped its bounds in two critical respects.
Source Publication
The Challenge for Collective Bargaining: Proceedings of the New York University 65th Annual Conference on Labor
Source Editors/Authors
Michael Z. Green
Publication Date
2013
Recommended Citation
Estreicher, Samuel and Huibonhoa, Katherine C., "NLRB Lacks Authority for Its D.R. Horton Decision" (2013). Faculty Chapters. 452.
https://gretchen.law.nyu.edu/fac-chapt/452
